A Polish law mandating early retirement for judges violates EU law, the advocate general of the Court of Justice of the European Union said in an opinion issued Thursday.
The Polish law was passed in 2017. The government argued it was needed to cleanse the courts of judges who had started their careers under the communist system, while critics charged that it was an attempt by the ruling Law and Justice (PiS) party to seize control of the judiciary.
The law lowered the retirement age from 67 to 65 for men and 60 for women, allowing them to stay on past that age only if they gained permission from the justice minister.
The European Commission launched an infringement procedure against Poland over the law, which was modified in 2018. The new law no longer has different retirement ages for men and women, and decisions on extending their tenure are made by the Polish Judiciary Council, not the justice minister.
However, the Commission argued that those changes did not resolve all the problems with the law. It’s also a test for the EU over whether it can act in cases where it thinks national law undermines the independence of the judiciary.
In Thursday’s opinion, Advocate General Evgeni Tanchev found that the law violated the equal treatment of men and women. He also found that the law did not have safeguards to guarantee the immovability and independence of judges.
“By lowering the age of retirement of judges of the common law courts, and by vesting the Minister of Justice with the discretion to extend the active period of such judges, Poland has breached its obligations under EU law,” said the opinion.
The case is part of a broader set of conflicts between Poland and the EU over the scope of deep reforms to the country’s justice system implemented since PiS came to power in 2015.
The court tends to follow its advisers’ opinions, but does not have to. The CJEU will issue its verdict at a later date.